J R Amin & Company vs Chandrapal R Yadav
2021 Latest Caselaw 1417 Guj

        C/SCA/7984/2010                                JUDGMENT



       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/SPECIAL CIVIL APPLICATION NO. 7984 of 2010


FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE A. P. THAKER

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1    Whether Reporters of Local Papers may be allowed             No
     to see the judgment ?

2    To be referred to the Reporter or not ?                      No

3    Whether their Lordships wish to see the fair copy            No
     of the judgment ?

4    Whether this case involves a substantial question            No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                           J R AMIN & COMPANY
                                  Versus
                          CHANDRAPAL R YADAV
==========================================================
Appearance:
MR PRABHAKAR UPADYAY(1060) for the Petitioner(s) No. 1
MS MEENU KUMAR(3735) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 1
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 CORAM: HONOURABLE DR. JUSTICE A. P. THAKER

                           Date : 01/02/2021

                           ORAL JUDGMENT

1. The present petition has been filed under Articles 226 and

227 of the Constitution of India by the petitioner­employer upon

being aggrieved with and feeling dissatisfied with the impugned ex­

parte order dated 3.11.2008 passed by the Hon'ble Labour Court in

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Recovery Application No. 1971 of 2002 and the order dated

13.3.2010 passed by the Labour Court in Misc. Application No. 349

of 2008 and the order dated 19.3.2010 passed by the Labour Court

in Misc. Application No. 379 of 2008, mainly on the ground that

order passed in Recovery Application No. 1971 of 2002 was ex­

parte, which was initially challenged by the petitioner herein by

filing Application for hearing the matter bi­parte, which came to be

rejected by the learned Labour Court on the ground that the

application is premature. It is also contended that therefore, the

petitioner moved another application for the relief of hearing the

impugned Recovery Application bi­parte, which came to be rejected

by the trial Court on the ground that as the petitioner has adopted

delay tactics though summons of notice of Recovery Application

was served, he has taken stand that the employer was not in

knowledge about pendency of the Recovery Application.

2. Heard Mr. Prabhakar Upadhyay, learned advocate for the

petitioner and Ms. Meenu Kumar, learned advocate for the

workman at length through video­conferencing.

3. Mr. Prabhakar Upadhyay, learned advocate for the petitioner

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has mainly submitted the same facts which are narrated in the

petition. While inviting the attention of this Court on the order

passed by the learned Labour Court and the proceedings thereon,

he has submitted that though initially employer filed an application

for set­aside ex­parte order under Rule 26(A) of the Industrial

Disputes (Gujarat) Rules, 1966, the same was rejected by the

learned Labour Court on the ground that it was premature. He has

submitted that thereafter the employer has filed another

application which was came to be dismissed. He has prayed that let

the matter be remanded to trial Court with some direction to

dispose it of within 3 months and the amount deposited by the

petitioner in this Court be remitted to the Labour Court and be kept

as Fixed Deposit, as has been done by this Court. Thereafter, if he

succeeds, the said amount be paid to him. Learned advocate for the

petitioner has also submitted that if the Court thinks proper to

impose costs, the Petitioner will pay the same as may be ordered by

this Court.

4. Per contra, Ms. Minu Kumar, learned advocate for the

respondent workman has vehemently submitted that when ex­parte

order was passed by the learned Labour Court, the employer could

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have immediately filed necessary petition in High Court and not

have challenged before the labour Court. According to her

submission, the employer has adopted delay tactics and due to that

since 2002, the workman has got nothing. She has submitted that

the petition may be rejected and the Hon'ble Court may pass

necessary order.

5. Having considered the submissions made on behalf of both

the sides, perusing the materials placed on record, it transpires that

original recovery application No. 1971 of 2002 was heard ex­parte

and the labour Court has passed the order in favour of the

workman, which was ex­parte. It also appears from the record that

considering the provision contained in Rule 26(A) of the Industrial

Dispute (Gujarat) Rules, 1966, which runs as under:

"26A. Setting aside exparte Orders, Awards and Reports.­ (1) On an application made within thirty days from the date knowledge of an ex­parte order, award or report by the party concerned, the Board, Court, Labour Court or Tribunal or Arbitrator may, for sufficient cause, set aside, after notice to the opposity party, such order, award or report as the case may be; (2) The Board, Court, Labour Court or Tribunal or Arbitrator may, on sufficient cause being shown, extend the period referred to in sub­rule (1);

C/SCA/7984/2010 JUDGMENT

(3) An application under sub­rule (1) shall be supported by an affidavit".

6. The learned Labour Court considered first Application as

premature. It is also clear from the record that thereafter fresh

application filed by the employer was rejected on the ground that it

is delay tactic on the part of the employer. Thus, the fact remains

that the award which was passed by the learned Labour Court in

Recovery Application No. 1971 of 2002 is ex­parte and employer

has not got any opportunity of being heard. In that view of the

matter, this Court is of the opinion that if the present petition is

allowed subject to payment of cost of Rs. 15,000/­ by the employer

to the workman, and directing the learned Labour Court to dispose

the matter within 3 months after the re­opening of the physical

hearing of the Court and remit the amount deposited by the

employer with this Court and the interest accrued therein, to the

learned Labour Court. In case of success of workman in the

Recovery Application No. 1971 of 2002, the learned Labour Court

shall be at liberty to pass necessary order for payment thereof to

the workman, then interest of justice will survive.

7. In view of the above, the impugned order passed by the

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learned Labour Court is set­aside with the condition that the

employer shall deposit Rs.15,000/­ by Account Payee Cheque to the

workman directly within one month from today. The amount

deposited by the petitioner herein of Rs. 62549.50 ps with interest

accrued thereon be remitted to the concerned Labour Court by the

Registry. The Labour Court is directed to deposit the said amount

in FD initially for a period of 6 months, which may be renewed

from time to time. The Amount to be deposited in the name of the

concerned Registry/ Nazir of the concerned Labour Court. The

learned Labour Court is directed to give opportunity of being heard

to the employer and decide the Recovery Application No. 1971 of

2002 bi­parte within a period of 3 months after physical

functioning of the Court. Both the parties are directed to cooperate

with the learned Labour Court for earlier disposal of the matter in a

time bound.

8. With the aforesaid observations,the application stands

disposed of. Rule is made absolute to the aforesaid extent.

(DR. A. P. THAKER, J) SAJ GEORGE